Thursday, December 05, 2013

Test Your TTAB Judge-Ability: Which One of these Section 2(d) Refusals Was Reversed?

It has been said that that the outcome of most Section 2(d) likelihood of confusion cases may be predicted just by looking at the marks and the identified goods/services, without more. So try your adjudicatory skills on these four appeals. [Answer in first comment].

The answers are always available in the decisions he links to... saying the answers in the comments just spoils the "guessing game" in the comments. I think he should just say "skip to the bottom of the decisions to see the answers" and let the comments be for people who want to guess.

I'm surprised by the GRAIN AUDIO / EGRAIN opinion.I would have thought that the TTAB would use the same standards for likelihood of confusion as trial courts.

The products are not similar: They all include electronic component parts, but one is highly technical computer equipment, and the other is home audio equipment. The marketing channels are different: one is marketed in stores and on the internet, and the other isn't (Google was unable to find EGRAIN equipment). The consumers themselves are different: The typical purchaser of speakers and MP3 players are not the typical purchasers of highly specialized network equipment, sensors, and indicators. GRAIN AUDIO had no intent to confuse consumers, and there is no evidence that consumers were or would be confused. The opinion notes that "applicant's argument that its customers will take care in ensuring that applicant's equipment is compatible with their other audio equipment or with a particular room in their homes is well-taken," and that "customers will exercise care in purchasing registrant's goods, due to their technical nature," but dismisses these findings as irrelevant.

Finally, even the marks are somewhat dissimilar: While GRAIN and EGRAIN are superficially similar in appearance, their sound is likely different. Unless EGRAIN was eGrain, I would presume it was pronounced Egg-ren, or EGG-rain, or possibly ai-GRAN, none of which sound like GRAIN.

However, as I said, I expected the TTAB to do a similar analysis as a trial court. Reading this opinion was enlightening. I now appreciate the different analyses in cases involving registration as opposed to claims of infringement.